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FOIL-AO-13817

 

January 8, 2003

 

E-Mail

TO:

FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear

I have received your letter in which you questioned the propriety of a denial of access by the
Village of Greenwood to a "sewer study update paid for with a member's item grant." The Village
contends that "the study is a draft and is considered inter/intra governmental communication."

In this regard, first, the Freedom of Information Law makes no specific reference to drafts,
and in my view, documentation in the nature of a draft is subject to rights of access. That statute is
applicable to agency records, and §86(4) defines the term "record" to include:

"...any information kept, held, filed, produced, reproduced by, with or
for an agency or the state legislature, in any physical form whatsoever
including, but not limited to, reports, statements, examinations,
memoranda, opinions, folders, files, books, manuals, pamphlets,
forms, papers, designs, drawings, maps, photos, letters, microfilms,
computer tapes or discs, rules, regulations or codes."

Based on the foregoing, a draft prepared by or for the Village would constitute a "record" as soon
as it exists.

Second, as a general matter, the Freedom of Information Law is based upon a presumption
of access. Stated differently, all records of an agency are available, except to the extent that records
or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of
the Law.

Third, although §87(2)(g), the provision pertaining to inter-agency and intra-agency
materials, potentially serves as a basis for a denial of access, due to its structure, it often requires
substantial disclosure. Specifically, that provision states that an agency may withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by
the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-
agency or intra-agency materials may be withheld, portions of such materials consisting of statistical
or factual information, instructions to staff that affect the public, final agency policy or
determinations or external audits must be made available, unless a different ground for denial could
appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that
are reflective of opinion, advice, recommendation and the like could in my view be withheld.

In a discussion of the issue of records prepared by consultants for agencies, the Court of
Appeals, the State's highest court, stated that:

"Opinions and recommendations prepared by agency personnel may
be exempt from disclosure under FOIL as 'predecisional materials,
prepared to assist an agency decision maker***in arriving at his
decision' (McAulay v. Board of Educ., 61 AD 2d 1048, aff'd 48 NY
2d 659). Such material is exempt 'to protect the deliberative process
of government by ensuring that persons in an advisory role would be
able to express their opinions freely to agency decision makers
(Matter of Sea Crest Const. Corp. v. Stubing, 82 AD 2d 546, 549).

"In connection with their deliberative process, agencies may at times
require opinions and recommendations from outside consultants. It
would make little sense to protect the deliberative process when such
reports are prepared by agency employees yet deny this protection
when reports are prepared for the same purpose by outside
consultants retained by agencies. Accordingly, we hold that records
may be considered 'intra-agency material' even though prepared by an
outside consultant at the behest of an agency as part of the agency's
deliberative process (see, Matter of Sea Crest Constr. Corp. v.
Stubing, 82 AD 2d 546, 549, supra; Matter of 124 Ferry St. Realty
Corp. v. Hennessy, 82 AD 2d 981, 983)" [Xerox Corporation v. Town
of Webster, 65 NY 2d 131, 132-133 (1985)].

Based upon the foregoing, records prepared by a consultant for an agency may be withheld
or must be disclosed based upon the same standards as in cases in which records are prepared by the
staff of an agency. It is emphasized that the Court in Xerox specified that the contents of intra-
agency materials determine the extent to which they may be available or withheld, for it was held
that:

"While the reports in principle may be exempt from disclosure, on
this record - which contains only the barest description of them - we
cannot determine whether the documents in fact fall wholly within the
scope of FOIL's exemption for 'intra-agency materials,' as claimed by
respondents. To the extent the reports contain 'statistical or factual
tabulations or data' (Public Officers Law section 87[2][g][i], or other
material subject to production, they should be redacted and made
available to the appellant" (id. at 133).

Therefore, a record prepared by a consultant for an agency would be accessible or deniable, in whole
or in part, depending on its contents.

I note that in another case that reached the Court of Appeals, one of the contentions was that
certain reports could be withheld because they were not final and because they related to incidents
for which no final determination had been made. The Court rejected that finding and stated that:

"...we note that one court has suggested that complaint follow-up
reports are exempt from disclosure because they constitute nonfinal
intra-agency material, irrespective of whether the information
contained in the reports is 'factual data' (see, Matter of Scott v. Chief
Medical Examiner, 179 AD2d 443, 444, supra [citing Public Officers
Law §87[2][g][111]). However, under a plain reading of §87(2)(g),
the exemption for intra-agency material does not apply as long as the
material falls within any one of the provision's four enumerated
exceptions. Thus, intra-agency documents that contain 'statistical or
factual tabulations or data' are subject to FOIL disclosure, whether or
not embodied in a final agency policy or determination (see, Matter
of Farbman & Sons v. New York City Health & Hosp. Corp., 62
NY2d 75, 83, supra; Matter of MacRae v. Dolce, 130 AD2d 577)..."
[Gould et al. v. New York City Police Department, 87 NY2d 267,
276 (1996)].

In short, whether the study was prepared by Village employees or by a consultant, I believe
that it could be characterized as intra-agency material. However, that it is a draft is not determinative
of rights of access. Again, insofar as the record in question consists of statistical or factual
information, I believe that it must be disclosed.

I hope that I have been of assistance.

RJF:jm

cc: Board of Trustees